You ask whether Senate Bill 522, setting forth certain exceptions to the definition
of the term "gambling device," conflicts with provisions of Senate Bill 1067 defining that
term. The legislature recently enacted Senate Bill 1067, which significantly revises the
Penal Code. See Acts 1993, 73d Leg., ch. 900. Senate Bill 1067 amends the definition
of the term "gambling device" in section 47.01 of the Penal Code as follows:

"Gambling device" means any contrivance that for a
consideration affords the player an opportunity to obtain anything of
value, the award of which is determined solely or partially by
chance, even though accompanied by some skill, whether or not the
prize is automatically paid by the contrivance.

Id. § 1.01 (italics indicate new language). This provision will become effective
September 1, 1994. Id. § 1.19. It was enacted by the legislature on May 29, 1993. H.J.
of Tex., 73d Leg., at 5164 (1993).

Senate Bill 522 amends the section 47.01 definition of the term "gambling
device" as follows:

(3) "Gambling device" means any electronic, electromechan-
ical, or mechanical contrivance not excluded under Paragraph (B)
of this subdivision that for a consideration affords the player an
opportunity to obtain anything of value, the award of which is
determined solely or partially by chance, even though accompanied
by some skill, whether or not the prize is automatically paid by the
contrivance. Gambling device:

(A) includes, but is not limited to, gambling device versions
of bingo, keno, blackjack, lottery, roulette, video poker, or
similar electronic, electromechanical, or mechanical games, or
facsimiles thereof, which operate by chance or partially so,
which as a result of the play or operation of the game award
credits or free games, which record the number of free games or
credits so awarded, and which also record the cancellation or
removal of the free games or credits; and

(B) does not include any electronic, electromechanical, or
mechanical contrivance designed, made, and adapted solely for
bona fide amusement purposes if the contrivance rewards the
player exclusively with noncash merchandise prizes, toys, or
novelties or representation of value redeemable for those items
which have a wholesale value available from a single play of
the game or device of not more than 10 times the amount
charged to play the game or device once or $5, whichever is
less.

It is a defense to prosecution under this section that a person
played for something of value other than money using an electronic,
electromechanical, or mechanical contrivance which is excluded
from the definition of gambling device under section 47.01(3)(B).

Id. § 2. These provisions were enacted by the legislature on May 31, 1993, see S.J. of
Tex., 73d Leg., at 4118 (1993), and have an effective date of August 30, 1993, see Acts
1993, 73d Leg., ch. 774, § 4, at 3030.

The Code Construction Act provides in pertinent part that

if amendments to the same statute are enacted at the same session of
the legislature, one amendment without reference to another, the
amendments shall be harmonized, if possible, so that effect may be
given to each. If the amendments are irreconcilable, the latest in
date of enactment prevails.

Gov't Code § 311.025(b) (emphasis added). Were we to conclude that the Senate Bill
522 and Senate Bill 1067 definitions of the term "gambling device" conflict
irreconcilably, the bill with the latest enactment date, Senate Bill 522, would prevail. We
do not believe that it is appropriate to apply the Code Construction Act's rule of
construction in this instance, however, because Senate Bill 1067 makes express reference
to other acts amending the Penal Code in the same session, and establishes a guide for
their construction. See Attorney General Opinion DM-234 (1993) at 4 (Code
Construction Act, Gov't Code § 311.025(b), does not apply where the legislature has
"clearly expressed its intent with

regard to the proper course should a provision of that law and another law adopted in the
same session conflict"). Section 13.02 of Senate Bill 1067 provides in pertinent part:

(a) . . . an amendment to any provision of the Penal Code made
by another Act of the 73rd Legislature, Regular Session,
1993, . . . applies only to an offense committed under the provision
on or after the effective date of the other Act and before September
1, 1994. The amendment made by the other Act continues in effect
only for the limited purpose of the prosecution of an offense
committed before September 1, 1994.

(b) For purposes of this section, an offense is committed before
September 1, 1994, if all elements of the offense occur before that
date.

Acts 1993, 73d Leg., ch. 900, § 13.02(a), (b).

Under section 13.02 of Senate Bill 1067, the definition of the term "gambling
device" set forth in Senate Bill 522 applies only to an offense committed on or after
August 30, 1993, and before September 1, 1994. After September 1, 1994, Senate Bill
522 continues in effect only for the limited purpose of prosecuting offenses committed
before that date. (footnote 1) The definition of the term "gambling device" set forth in Senate Bill
1067 will be effective on September 1, 1994, and will apply to all prosecutions after that
date, except for prosecutions of offenses committed before that date. Under section
13.02, an offense is committed before September 1, 1994, if all elements of the offense
occur before that date.

S U M M A R Y

The definition of the term "gambling device" set forth in Senate
Bill 522, Acts 1993, 73d Leg., ch. 774, § 1, applies only to an
offense committed on or after August 30, 1993, and before
September 1, 1994. After September 1, 1994, Senate Bill 522
continues in effect only for the limited purpose of prosecuting
offenses committed before that date. The definition of the term
"gambling device" set forth in Senate Bill 1067, Acts 1993, 73d
Leg., ch. 900, § 1.01, will be effective on September 1, 1994, and
will apply to all prosecutions after that date, except for prosecutions
of offenses committed before that date.

Yours very truly,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes

(1) The defense to prosecution set forth in Senate Bill 522 will have the same limited effective
dates.